The claimant made a large claim for personal injury, but settled for a very small amount, and his costs. The costs judge rejected a submission that he could start by deciding that only 25% of the costs ultimately assessed as being payable.
Held: The rejection was correct. Dyson LJ said: ‘There is a real distinction between (a) carrying out an assessment and deciding as part of the assessment to reduce the bill by a percentage and (b) deciding in advance of the assessment that the receiving party will only receive a percentage of the assessed costs. The figure that results from (b) represents less than 100% of the assessed costs . . In deciding in advance of the assessment that the receiving party will only receive a percentage of the assessed costs, the costs judge is not giving effect to an order that the party is entitled to his costs, to be assessed if not agreed.
Rule 44.3 gives a judge a jurisdiction to make a type (b) order. There is no doubt that at the end of a hearing, a judge may make an order of the kind sought from the district judge in the present case. In such a case, the judge is not purporting to vary an order if he disallows the successful party a proportion of his costs. He is making the order. He does not have the advantage accorded to the costs judge of having a detailed bill of costs. He cannot, therefore, carry out a detailed assessment. But he usually has the benefit, denied to the costs judge, of knowing a good deal about the case, and is often in a good position to form a view about the reasonableness of the parties’ conduct. When carrying out a detailed assessment, the costs judge is not making an order for costs. His position is quite different from that of a judge exercising the jurisdiction given by rule 44.3.
It is, in fact, quite unnecessary to give the costs judge the jurisdiction for which Miss Ayling contends. The premise on which her argument is based is that, without such a power, the costs judge cannot arrive at a fair result in certain situations. Mr Roussak concedes (rightly) that in an appropriate case, the costs judge can disallow entire sections of a bill of costs. If the costs judge considers that the claimant acted unreasonably in refusing an offer to settle made before proceedings were issued, he is entitled to disallow all the costs post-issue on the footing that they were costs ‘unreasonably incurred’: rule 44.4(1). Similarly, where he decides that a party was unreasonable to raise and pursue an issue, the costs judge is entitled to disallow the costs relating to that issue on the grounds that they were unreasonably incurred.’
Judges:
Dyson LJ
Citations:
[2007] EWCA Civ 91, [2007] 3 Costs LR 462, [2007] CP Rep 21, [2007] 1 WLR 998, [2007] PIQR P20
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Business Environment Bow Lane Ltd v Deanwater Estates Ltd ChD 31-Jul-2009
The court was asked ‘Where a claimant has picked up one or more costs orders in its favour on the way to a trial, but fails very badly at the trial (for example due to exaggeration), can the costs judge assess those costs at nil on the footing that . .
Cited – Drew v Whitbread CA 9-Feb-2010
The personal injury claimant sought to raise on taxation, matters not put to the trial judge when making the costs order. The personal injuries case had been allocated to the multi-track. The judge at trial had awarded costs on the standard basis, . .
Lists of cited by and citing cases may be incomplete.
Costs
Updated: 13 October 2022; Ref: scu.248806